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November 21, 2007

Panel: 'Notices of Unavailability' Don't Cut It

Ah, the perfect pre-holiday ruling: A state appellate panel late Wednesday gave loud and somewhat grouchy notice that lawyers can no longer dictate the terms of their availability. Taking aim at a practice it says is premised on nothing more than "made up" authority, a three-justice panel in Santa Ana warned that the Fourth District won't accept so-called "notices of unavailability," which it says have become common in trial courts in the years since a 1992 case, Tenderloin Housing Clinic v. Sparks, was decided.

According to the per curiam opinion (.pdf), that case held that an attorney can be sanctioned for intentionally timing filings to land while an opponent is on vacation. That's led lawyers to send opponents — and courts — notices setting out dates they aren't available.

In the petition dispatched Wednesday, attorney David Williams filed a
statement of disqualification against the judge assigned to his
client's case, then sent a notice saying he wouldn't be available to
respond to anything for more than a month. Since trial judge Judge Ronald Bauer has
only 10 days to act, he ignored the notice and ordered
the statement stricken.

It gets better.

The petition filed with the court of appeal was itself
untimely, but Williams told the justices that was because Bauer hadn't
served him — he'd only served his client. For proof, he attached a fax
cover sheet addressed to his client. Nice try, but the justices pulled
the superior court file and noted that it contains a fax cover sheet
addressed to Williams, as well.

Even though the petition was untimely under any theory, the justices
took the trouble to debunk Williams' claim that his "notice" could somehow
stop the clock. "Simply put, petitioner essentially argues that by
filing a 'notice of unavailability' he unilaterally called a litigation
time-out." Alas, the court concluded, "petitioner cannot on his own
enjoin the superior court from issuing orders."

Nor should lawyers try to stop the Fourth District's from doing
so. Having gotten its start in the trial courts, the practice now
"permeates" the appellate process, according to the opinion in Carl v.
Superior Court, which was signed by Justices David Sills, Richard
Aronson and Raymond Ikola. The notices now arrive, they note, "on a
regular basis and at all times during the appeal process: they come
before the record is filed, they come while the matter is being
briefed, and they have even come after a matter has been submitted for
decision."